Piracy

Piracy Past, present and future

P.W. Birnie

After a brief historical overview, the author examines the definition of piracy. There are problems with this as definition differs under municipal and international law, and the latter gives rise to two interpretations. Attempts at codifications are described, from the activities of the League through the Harvard of Nations, Research Draft of 1932 to the Geneva Convention on the High Seas in 1958 and the 1982 Law of the Sea Convention. Examples are given of types of piracy, including the seizing of yachts, violence against boat people and political piracy. Possible legal responses to piracy are discussed. Dr Birnie is with the Department of Law at the London School of Economics & Political Science, Houghton Street, London WCPA 2AE, UK. ‘D. Botting, The Pirates, Time Life Books, Amsterdam, 1978, p 22, cited by E.D. Brown, ‘Maritime commercial malpractices and piracy under international law’, Maritime Policy and Management, Vol8, 1981, pp 99-l 07. ‘For its early history see T.W. F&on, The Sovereignty of the Sea, William Blackwood and Sons, Edinburgh, 1911, pp 247-272; H.A. Smith, The Law and Custom of the Sea, Stevens & Sons Ltd, London, 1950, pp 50-58; C.J. Colombos, The Intemationa/ Lawof the Sea, Longmans, Green & Co Ltd. London, 1962, DD 402-406: C. Llovd. English Corsairs on’ the Barb&y Co&t; Collins, London, 1981; D.M. Johnston, Marine Policy and the Coastal Community, Croom Helm, London, 1981; A.P. Rubin, ‘The use of piracy in Malayan waters’, in C.H. Alexandrowitz, ed, Grotian Society Papers, Martinus Nijhoff, The Hague, 1968, pp 111-135. 3Territorial waters Jurisdiction Act 1878,41 continued on page 164

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As has been observed elsewhere, piracy may well be the world’s third oldest profession, medicine being the second oldest.’ Piracy is an age old offence;* references to it were made in Justinian’s Digests in 529 AD, in King John’s Ordinance of 1201, and in numerous European laws from then on. It was also the subject of Papal Bulls and international treaties from early times. Pope Alexander VI’s Bull of 1493 dividing the Atlantic Ocean between Spain and Portugal held each responsible for regulating piracy in its area as did the Treaty of Tordesillas, which confirmed this arrangement the following year. Britain’s first Piracy Act came in 1698 and was followed by further Acts in 1721, 1837 and 1850. The Territorial Waters Jurisdiction Act of 1878 finally preserved the offence of piracy jure gentium under English law.3 Piracy is most familiar to us from the romantic literature of our childhood, in the form it took in the 17th to 19th centuries when pirates operated from distant ports or uninhabited coasts and islands, preying on the commercial explorers of a period when most navies lacked the skills and equipment to dominate the oceans. Madagascar was once for 35 years a pirate republic, for example, calling itself Libertalia and operating its own laws and international language; shipping enterprises dealing in piracy were set up in some US cities.” Such pirates were robbers who attacked and plundered other vessels indiscriminately and violently, roaming the oceans for this nefarious purpose and hence being sometimes referred to as ‘rovers’. They carried out such activities in all the major sea areas - the Mediterranean, the Atlantic, the Middle and Far East, the Pacific and Indian Oceans. Sometimes states even licensed piratical acts: corsairs were commissioned to commit piratical acts against the enemies of their country.’ Are we to equate modern terrorists with them? Pirate ships, once captured, could be commissioned as privateers to plunder ships of the same flag as the original attackers, in retaliation. This practice was ended by the Treaty of Paris in 1856,6 however. Following the growth of certain navies, particularly the Royal Navy, from the 19th century, and Britain’s long-lasting control of the world’s major oceans and seaways in the period that followed, such forms of piracy virtually disappeared.’ The growth of colonies in the 19th century also denied to pirates the uninhabited island bases that they had once freely used. By 1925, it was possible to ask ‘Is

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continued from page 763 & 42 Vict., C.90; for earlier acts see D.H.N. Johnson, ‘Piracy in modern international law’, Grotius Society Transactions, Vol 43, 1957, p 63. %.P. Anand, Origin and Development of Nle Law of the Sea, Martinus Nijhoff, The Hague, 1980, pp 113-l 18. %mith, op tit, Ref 2, p 78. ‘Declaration of Paris 1856, ‘General Treaty of Peace between France, Great Britain and Russia’, Brifish & Foreign State Papers, Vol 46, p 26. ‘Colombos. OD cit. Ref 2. D 53. *E.D. Dickinson, .‘Is the crime of piracy obsolete?‘, Harvard Law Review, Vol 38, 1924-25, pp 334-360; he emphasized the vitality of the law of piracy and that ‘While the occasions for invoking its rules are less frequent now than formerly, it may still be made a potent factor in preventing lawlessness upon the seas’; it belonged to ‘the law in reserve rather than to the law in history’ and could be invoked to stamp out seizure of rum running ships evading US liquor law. ‘For an outline of these debates see Fulton, op tit, Ref 2, Chapter IX, pp 338-377. “Colombos, op tit, Ref 2, p 402; J. Moore, Lotus Case, PCIJ, Ser A, No 10, 1927, p 70. I’D P O’Connell, in Shearer, ed, The lnternafional Law of the Sea, Clarendon Press, Oxford, 1984, p 966. Universal iurisdiction has at various times remained controversial, however; ibid, p 977. “Harvard Research in International Law, Draft Convention on Piracy with Comments, AJIL, Vol 26, 1932, Supplement, p 749. 13Johnson, op tit, Ref 3, p 69; but see International Law Association, fifty-fourth Report, The Hague, 1970, Piracy: Sea and Air, pp 706-771, at pp 709-710. 14The League of Nations Committee of Experts for the Progressive Codification of International Law so categorized it; League of Nations Document, qol 5, 1926, D 2. reorinted in AJIL, Vol 20, Special $up&ement, 1926, p 223; note also A.D. Wiener, ‘Piracy: the current crime’, Lloyds’ Marine and Commercial Law Quarterly, Vol 4, 1979, pp 46%484, pp 46%483.

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It is often assumed that in an era of the crime of piracy obsolete?‘” population growth, rapid technological developments in enforcement vessels, telecommunications and comprehensive surveillance of the oceans by aircraft, helicopters and satellites. this remains the situation. What has happened, however. is that piracy, although it has decreased, has adapted to modern technical, political, economic and social developments and still exists, albeit in new forms which require new means for its suppression. Moreover, the growth period of piracy coincided with the emergence of the jurisdictional basis of the law of the sea, which, from the time of the great doctrinal debates between Grotius, Selden and Welwood in the 17th century,” was founded on a simple division of the seas into a narrow belt of territorial sea over which the coastal state exercised sovereignty and, therefore, exclusive jurisdiction, and the high seas, the area beyond, in which the doctrine of the freedom of the seas prevailed. This doctrine was based on the economic necessity of maintaining freedom of navigation to enable the development of trade with the New World and protecting the interests of such fishermen as wished to venture into distant waters. Piracy had to be stamped out on the high seas to preserve these freedoms which were then perceived as being to the advantage of the whole international community. Not only were pirates a threat to the existing global economy they also frequently resorted to such unbridled savagery in the attacking and plundering of vessels, crews and passengers without discrimination that they came to be regarded as hastes humani generis,” enemies of the whole human race. It was accepted, therefore, by all states that jurisdiction over piratical acts should be universal, that is to say that the vessels of any state could apprehend them and that any state into whose jurisdiction the pirates were brought or found could try and punish them under its laws, even though the offence had been committed beyond the generally accepted scope of national jurisdiction, namely, at that period, on the high seas.” The basis of the international law establishing piracy jure gentium was to protect community interests in economic development and humanitarian standards. An understanding of this will help us to ascertain whether, and if so how, the law requires further adaptation today to protect these or other perceived community interests. Controversy, however, still surrounds the jurisprudential basis of this universal jurisdiction. Some writers and researchers take the view that despite the uniqueness of its designation by international customary law as an offence against the whole human race piracy is not a crime. The compilers of the Harvard Research Draft” on the subject commented that it is not a crime against the law of nations but generates a unique solution - a special ground of jurisdiction permitting the exercise of a state’s own national laws, the actual exercise of jurisdiction being dependent on the will and national laws of states. Others, such as Johnson,‘3 doubt whether it can be regarded as a crime because of the absence of any international criminal court or a treaty to which all states are party; other writers. on the other hand, have no hesitation in referring to it as a crime, because of the heinous nature of the acts performed, and in attributing the basis of universal jurisdiction to this perception.‘” Controversy also surrounds the precise definition of piracy. This derives from the fact that although there is general agreement on at least a minimum definition, which will be outlined below, some states define,

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Piracy

or have in the past defined, the offence more widely in their municipal laws. As the cases come to trial in municipal courts the differences in the scope of international and national definitions have often confused the issue and the underlying reasoning.” Attempts to clarify the situation by codifying the international law of piracy in the 1958 Geneva Convention on the High Seas’” and the 1982 UN Law of the Sea Convention” have further confounded matters since the definitions adopted are narrow ones, not consonant with all states’ laws, and have been expressed in somewhat ambiguous terms leaving in doubt seizures of vessels by their own crew or passengers and seizure of any vessel for political ends - as occurred in the cases of the Santa Maria and Achille Lauro - or by states, as in the Mayaguez or Pueblo incidents. An examination of the present state of the law and its relevance to violent acts performed at sea today has to comprehend analysis of both the international and municipal law perspectives of the offence, as well as a study of the kinds of violence occurring. The definition of piracy will thus be examined first, before the nature and incidence of the acts occurring today, which might be categorized as piracy in its widest sense, are described.

The definition of piracy

15For an analysis of the relevant cases see Johnson, op tit, Ref 3, pp 71-78; O’Connell, op cif, Ref 11, pp 971-976. ‘%onvention on the High Seas, Geneva, 29 April 1958; in force 30 September 1962; UNTS, Vol 450, p 11. 17United Nations Convention on the Law of the Sea (hereafter UNCLOS), Montego Bay, 10 December 1982, not in force; ILM. Vol XXI, 1982, p 1245. “B.H. Dubner, The Law of lnfemafional Sea Piracy, Martinus Nijhoff, The Hague, 1980; see also Johnson, op cif, Ref 3, and O’Connell, op cif, Ref 11. ‘90’Connell, op tit, Ref 11, and Johnson, op cif, Ref 3, refer to piracy under municipal law as ‘piracy by analogy’, which has no claim to be universally recognized and point out that it must not be confused with true piracy. Nonetheless, it sometimes is see in particular H.M. Advocate v. Cameron, and Others, Scofs Law Times, 2 July 1971, pp 202-206; Cameron v. H. M. Advocafe, S.C., 1971, p 50.

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The definition has evolved over the years in response to states’ needs as evidenced in state practice. It is not proposed to give an elaborate analysis of this process and its ambiguities, as this has been done at length elsewhere, Ix but to point out the main stages of its development and the problems that remain. It must be stressed at the outset that there are preliminary problems deriving from the fact that there are two forms of definition, namely by international law and municipal law, and that the international law definition itself gives rise to two interpretations, one based on that codified in the 1958 Geneva Convention on the High Seas and repeated in the 1982 Law of Sea Convention, appertaining only to the 56 parties to the former, the other open to non-parties to the convention, based on pre-existing customary law. As the LOSC is not in force, the position of the 159 states which have signed it and the 32 parties that have ratified is somewhat unclear, except insofar as they include parties to the 1958 Convention. Having established the law under these heads we will finally have to ask whether it is now outmoded in the light of present practices involving violence at sea. Piracy in municipal

law

Every state can (but is not required so to do) promulgate its own laws on piracy, applicable, of course, only to its own nationals or to ships or persons found within its own jurisdiction or vessels registered under its flag. These may (but again are not required so to do) conform to the international definition of the offence of piracy jure gentium. Every state is entitled, but not obliged, to assume jurisdiction over pirates jure gentium on the high seas. States can prescribe their own penalties; these are not laid down by international law. ” At one time the death sentence was common but it no longer is so. The municipal law can complement the jus gentium even though it cannot per se change the nature of piracy jure gentium at the international level. The laws of each state thus may

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“‘See for examDIe the iudament of Lord Cameron in H.fk Advo&& v. Cameron and Others, p 205. *‘In re Piracy Jure Gentium, 1934, A.C. 566. 22H. M. Advocate v. Cameron, Cameron v. H.M. Advocate, op tit, Ref 19. 23H.M. Advocate v. Cameron, p 204. =/bid.

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vary both in content and area of application. Since the jurisdictional limits of the coastal state have been in state of flux for over 20 years and, in the absence of the entry into force of the new LOSC, arguably remain so, both in relation to the precise limits of the territorial sea and the juridical status of the new zones, whether established in the LOSC or by state practice, considerable confusion is apparent. English courts assert jurisdiction over piracy jure gentium under common law and thus themselves determine the elements of piracy jure gentium. They tend to think of it as a sea term for robbery, which covers any violent dispossession of a master of his ship, including by crew or passengers who subsequently convert the vessel to felonious purposes, although the requirement of personal gain has largely been dropped.20 The courts’ judgments have often been more concerned to find what is not piracy than what is, as in the leading case of In Re Piracy Jure Gentium 1934,21 when the court found that frustrated attempts to commit piracy also constituted piracy jure gentium, without actual robbery occurring, although in the course of so finding they referred approvingly to Kenny’s definition of piracy as any armed violence at sea which is not a lawful act of war. As recently as 1971 a case that was found to be piracy, which would certainly not be piracy under the current international law, came before the Scottish courts.22 Five crew me mbers were charged with seizing a British ship, the Mary Craig, at sea ‘about’ three miles off the coast of Aberdeen, taking over command from the captain, whom they put ashore, and navigating the vessel on to the high seas. Amongst the defences made was that the facts alleged did not constitute piracy as internationally recognized and charges that the accused tried to ram another vessel on the high seas about six to eight miles off Aberdeenshire were contended to be irrelevant because committed outside territorial waters. It was also contended that robbery was a necessary ingredient of piracy and that possession of the vessel had to be obtained forcibly for profit. Scottish works defining piracy such as Hume I and Macdonald (5th edition) as well as the case of In Re Piracy Jure Gentium were referred to. On the basis of these, Lord Cameron found that robbery of the ship itself was sufficient to constitute piracy. He also approved their Lordships’ remark in that case that ‘A careful examination of the subject shows a gradual widening of the earlier definition of piracy to bring it from time to time more in consonance with situations either not thought of or not in existence when the older jurisconsults were expressing their opinions’.2’ Lord Cameron also noted their reference to Hall’s view (International Law, 8th edn, 1924, p 314) that piratical acts included ‘robbery or attempted robbery of a vessel by force or intimidation either by way of attack from without or by way of revolt of the crew and conversion of the vessel and cargo to their own use’.24 He concluded that there was sufficient authority to find that the circumstances in this case amounted to the crime of piracy jure gentium, and equated the requirements to that of robbery on land, finding that a charge of robbery was sufficient to constitute one of Diracv even though piracy had not deen set out in the indictment. As Merchant Ship&g Acts extended jurisdiction of British courts to cover British subjects committing offences on board all British shins on the high seas. Lord Cameron illso concluded that the Scottish coirts had jurisvdiction in this case; the latter conclusion appears to be well founded, unlike the former, but it should be noted that various British statutes also give

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British courts jurisdiction to try for ‘piracy’ those engaged in the slave trade or mutiny.*” In the USA, however (since there is no common law criminal jurisdiction), the offence of piracy jure gentium has been incorporated into the municipal Federal law by a statute of 1909 which provides: ‘Whosoever on the high seas commits the crime of piracy, as defined by the law of nations, and is afterwards brought into or found in the United States shall be imprisoned for life’.* Even so in the leading US case of U.S. v. Smith in 1820,27 a US judge held that he could define piracy jure gentium and that in his view it was ‘robbery upon the sea’. Piracy under US law also covers revolt and mutiny, but no longer the slave trade. In the 192Os, during the Prohibition era, the USA was at first hesitant to regard the hijacking of illicit liquor running ‘rumships’ off its shores as piracy but in fact to do so would seem to present no difficulty since the acts committed involved both robbery and violence and took place between two ships outside US jurisdiction.*” Piracy in customary international law Writers and draftsmen have experienced great difficulty in defining what constitutes piracy at the international level. From the end of the 17th century, some states began to treat piracy as an international problem that they should eradicate. Certainly it was accepted that robbery, murder, rape, torture and plunder committed from one ship to another constituted piracy. The vessel concerned could be either a private vessel, with or without nationality, or a warship of a state at peace with the flag state of the victims; warships of states at war with states other than the victim’s state, not involved in blockade, were also considered to come within the scope of the offence. It was unclear whether piracy was confined to the high seas since in that period the concept of territorial zones was fluid and unfixed.‘” In the 18th and 19th centuries the definition broadened under the impact of municipal laws but also became controversial. The acceptance of the territorial sea doctrine settled part of the controversy concerning the relation between municipal and international piracy laws; municipal law applied exclusively in the territorial sea to nationals or ships registered in the state concerned and flying its flag. After reviewing the relevant decisions in municipal courts, Johnson concludes that clearly by the 20th century piracy under the jus gentium was confined to the high seas.3” In the territorial sea the concept of the jus gentium did not apply, unless specifically enacted (as by the USA), because crimes committed within territorial jurisdiction are perceived as crimes against the state, not the international community. Continued confusion of municipal and international definitions of piracy

25Johnson, op tit, Fief 3, p 68. =18 USC. $ 1651. *‘U.S. v. Smith. 18 U.S. 153 (1820). “E.D. Dickinson, op tit, Ref 8. *‘Johnson, op tit, Ref 3, pp 71-76. 3a/bid, p. 76. 3’See works cited by O’Connell, op tit, Ref 11, p 97, note 250; U.S. v. Brig. Malek Adhel Case, 43 U.S. 1844 (2 How) p 210.

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The differences between the two systems were often overlooked and some national courts interpreted piracy jure gentium in terms of their own municipal law, as in the Mary Craig case outlined earlier. For a period some states thus continued to include mutiny and internal seizure in their municipal definitions of so-called piracy jure gentium. Although mutiny was not usually categorized as piracy, because of the similarity of some mutinous acts to piratical ones courts quite often found them to be piratical. 3’ Thus a variety of acts have at various times been categorized as piracy. Internal seizures. Internal seizure of the ship has always presented

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320’Connell, op tit, Ref 11, p 973; Johnson, op tit, Ref 3; L. Oppenheim, in H. Lauterpacht, ed, lnfemational Law, 1954, p 609, note 1, cites several authorities for the view that internal seizure can constitute piracy; see also D. Greig, in International Law, 1976, pp 331-332. 330’Connell, op tit, Ref 11, p 173. %ee U.S. v. Smith, 5 Wheat. 153 (1820); The Magellan Pirates 164 Eng. Rep. 47, 48 (Etc. & Ad. 1853); The Huascar, Br. Parl. Pap., Peri No. 1 (1887) Crete B Pierrot, 30 Clunet (1903) 444. 350’Connell. OP cit. Ref 11, D 980; U.N. Legis. Series 1’952,‘Laws and’Regulations on the Regime of the High Seas, Vol, II, passim. 36Johnson examined Republic of Bolivia v. Indemnity Mutual Marine Insurance Co., 1 K.B. (1909) 785; The Magellan Pirates; The Serhassan Pirates, 2 W. Rob. 354 (1845); 166 E.R. 788; The Ambrose Light, 22 Fel. 408 (1885). 37Washington Naval Treaty, 6 February 1922, 16 A.J.I.L. (1922) Supplement, p 57. 381nternational Agreement for Collective Measures against Piratical Attacks in the Mediterranean by Submarines, 14 September 1937, UKTS, No 38, 1937.

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problems for writers trying to distinguish it from mutiny and remove it from categorization as piracy on the basis either of the status of the individuals undertaking the seizure, the amount of violence involved or the motives for the seizure, which might not be purely private but political, or occasioned by insanity or irrationality.” Some courts made no such distinctions and treated all such acts as piracy. This issue in particular still confuses international law. State acts and belligerent rights. Although, as remarked earlier, for a period it was accepted that states could authorize privateers and corsairs to engage in piratical acts on their behalf to seek revenge or recompense, in certain circumstances this caused controversy and the end of the practice in 1856 was welcomed. Rules developed concerning acts by belligerents, both recognized and unrecognized, but these also gave rise to dissension.” By the mid-19th century the maritime forceful actions of recognized belligerents were accepted as legitimate in customary law in response to the numerous revolutions during that period leading to constitutional changes; it was realized that the rebels of today may be the governments of tomorrow and vice versa. Though it was recognized that there was a limit to such actions and that certain acts beyond that limit could be regarded as piratical, the limit was vague and undefined. It was accepted, however, that actions by unrecognized governments or belligerents could clearly be piratical, as could plundering of ships not party to the hostilities.“4 Although this distinction was helpful, it relied for its success on subjective determination of belligerent status by other states; it was seldom that they concurred given the extent to which national interest dominates such political decisions. The doctrine of piracy developed in response to particular cases, as it continues to do today, and particularly the growth in its incidence in the 17th and 18th centuries. A few regional treaties were concluded, eg the 1889 Montevideo Convention accepting as a general principle of law that suppression of piracy was the responsibility of mankind, and the 1856 Declaration of Paris already referred to. From the late 19th century onwards it was accepted that a customary international law establishing piracy jure gentium had evolved and more states incorporated it into their national laws,j’ but the problems encountered in developing it in municipal law remained embedded in the questions of internal seizure and the distinction between piracy pursued for political and private ends. After reviewing the relevant municipal cases concerning this issue, Johnson found that there were some precedents for the view that piracy could be constituted by both internal seizure and acts for political ends before the conclusion of the 1958 Geneva Convention.ah Piracy by analogy. Contentious attempts were made to adapt the doctrine to cover some of the ruthless methods used in submarine warfare during the first world war. The Washington Declaration of 1922”7 between the UK, France, Italy, Japan and the USA aimed to punish ‘as if for an act of piracy’ anyone violating the rules it set out for attacks on merchant shipping by submarines and surface vessels. The Nyon Agreement of 1937” was concluded between Britain, France, Belgium, Egypt, Greece, Romania, Turkey, the USSR and Yugoslavia, following attacks on merchant vessels in the Mediterranean by unidentified aircraft and submarines acting on behalf of Spanish insurgents during the Civil War. Its text referred to acts ‘which should

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justly be treated as acts of piracy’ and ‘piratical acts’ by submarines, but the measures proposed to counteract them differed from the extension of universal jurisdiction. Both the Washington and Nyon approaches were generally criticized as unjustifiable, inappropriate and unnecessary attempts to extend the scope of ‘piracy’ jure gentium, similar to 19th century municipal attempts to hold states capable of committing piracy.s’ Thus no attempt was made to accuse of piracy the German Admirals tried at Nuremburg on charges concerning submarine warfare. It seemed then to be accepted that not all unlawful acts or incidents at sea had to be presented as ‘piracy’, which made its definition easier.

Towards codification League of Nations’ activities

%ee, for example, G.A. Finch, ‘Editorial comment: piracy in the Mediterranean’, AJL, 1937, oo 659-665; R. Genet, ‘The charge of piracy in the Spanish Civil War’, AJL. LID 253-263: ‘The Nvon arranoemenis,’ anonymous note’, Sk/L, Vol XIX, 1938, pp 198-208. A Rubin; op cif, Ref 2, at p 133 concluded that Britain also manipulated the concept of piracy to suit its political ends in Malayan waters at the beoinning of the 18th century to extend its control, creating a different regional international law for South-East Asia. He comments ‘once the concept of piracy had become so removed from universal applicability that it threatened to become merely an excuse for political action rather than a definitive legal justification for such action, the concept became more and more elusive as a matter of law’. 4oOp tit, Ref 14. 4’Op cif, Ref 12.

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The question of piracy was seen as a topic ripe for codification by the League of Nations. It commissioned a report from a subcommittee of its Committee of Experts for the Progressive Codification of International Law.40 The report attempted to resolve some of the ambiguities. It restricted piracy to acts on the high seas, but excluded acts of state controlled vessels and acts for political purposes. It disassociated true piracy from the problem of submarine attacks and political actions, which it called ‘piracy by analogy’ since they were not a danger to the shipping or commerce of all states indiscriminately. It recognized, however, that vessels without flags could commit piracy and that warships, after a mutiny, could be converted to pirate ships and also that unrecognized insurgents could commit piracy. These solutions were not universally acceptable, however, and even more contentious was a proposal that foreign vessels could engage in hot pursuit of pirates into the territorial sea of states that were unable themselves to pursue them. Various other proposals also proved unpopular including one that pirates could be tried by commanders of the warships that captured them. The few government comments received on the League report did not evidence either interest or enthusiasm for the topic and were disparate. In general it appeared many considered the time was not ripe for codification, perhaps because some thought the crime was virtually extinct. Only Romania saw a positive need for, and submitted a draft of, a piracy convention intended to be a forerunner of others establishing crimes against international society and an international criminal court. Nonetheless the League’s Assembly decided on the basis of the Report to select piracy as a topic for its Codification Conference. Harvard Law School thereupon undertook to organize research into the international law of piracy and to prepare a draft convention for the International Law Commission. This, with a detailed scholarly commentary, was published in 1932. The Harvard Research Draft 193241 The draft, the first to formalize the customary law, recognized the individual competence of states over the offence, ie that every state had jurisdiction over piracy (Article 2) which was constituted by any act of violence or depredation (or complicity therein) with intent to rob, rape, wound, enslave, imprison or kill a person or with intent to steal or destroy property (Article 3) as long as the acts were committed in

connection with an attack on another ship. Unlike the League draft, it permitted seizure of pirates in the territorial seas of other states in certain circumstances and made it clear by definition that aircraft were now included. Article 16 preserved a state’s right to protect its nationals, ships and trade against interference at sea by measures not based on piracy, a provision giving rise to food for thought concerning the development of ship hijacking today. But it clearly excluded from piracy unlawful attacks on persons or property for public purposes whether made on behalf of states, recognized belligerent groups or unrecognized bands of revolutionaries. Jurisdiction over these, it considered, should at present be reserved to the injured state, the states or recognized government for which the actions were carried out, and the state of nationality or domicile of the offender.

The Geneva

Convention

on the High Seas 1958J2

The Harvard Draft formed the basis, after the second world war, for the International Law Commission’s work on piracy for inclusion in the UN’s 1958 Geneva Convention on the High Seas.“3 As Chinese Nationalists were by then allegedly intercepting on the high seas vessels bound for the People’s Republic of China, it is not surprising to find that the USSR proposed that acts executed by warships and individuals for political ends could constitute piracy,44 citing the Nyon Agreements as precedent. A Czech proposal for a general definition that could be interpreted to cover such acts was rejected by the UNCLOS I, which adopted the convention in its present restrictive form. The ILC’s draft, aiming to avoid or remove the most contentious aspects of the customary law on piracy, watered down the more detailed Harvard Research Draft and restricted the concept both to acts for ‘private ends’ only and to the ‘high seas’ area (Article 15). As the relevant provisions have been repeated verbatim in the 1982 Convention they will be discussed in detail later in connection with it. It suffices to note here that by adopting a restrictive approach the ILC created two piracy doctrines: one based on the convention; the other, more permissive, on customary practice. In effect the customary law was not fully codified although the High Seas Convention purports in its Preamble to be ‘desirous of codifying the customary law’, and there was still no global consensus on the definition of piracy. The UN’s Third Conference on the Law of the Sea, required by the UN to produce a single treaty, had to negotiate a political package that would be acceptable to all states overall. It seems to have deemed it wise, therefore, to avoid re-opening old controversies by merely repeating verbatim the relevant articles on piracy from the 1958 Convention. The United Nations Convention 420p cd, Ref 16. 43For an analysis of the ILC draft Articles see Johnson, op tit, Ref 3, pp 63-68. ?bid, p 64. 450p tit, Ref 17. 460p tit, Ref 13, p 710; the draft did not set out a code but the basic principles for a general international convention on Piracy Sea and Air.

on the Law of the Sea 1982 (UNCLOS)“-5

Although the UNCLOS, like the 1958 Convention, has eight articles (Articles 10&107) specifically devoted to piracy, there are others, particularly those establishing new jurisdictional zones and concepts, that impact upon piracy today. The old weaknesses and ambiguities not only thus remain but are exacerbated by the zonal provisions. The UNCLOS took no account of an International Law Association Report of 19704h that simply defined piracy as unlawful seizure or taking control of a vessel by violence, threats thereof, surprise, fraud or other means.

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The rapporteur concerned (Professor Johnson) considered that internal seizures and hijackings occurring on the vessel were piracy and should be included in the definition.47 Article 100 does not require states to repress piracy but merely to cooperate as fully as possible to do so and then only on the high seas or in places beyond national jurisdiction (generally thought to refer to Antarctica and such uninhabited islands as remain unclaimed, but it should be noted that the Antarctic continent is subject to some territorial claims and that certain of these claimants have asserted territorial sea or 200-mile exclusive economic zones there on the basis of these claims). There is no duty to cooperate in suppressing piracy in the territorial sea, the area in which, as we shall see, it is now most likely to occur. Piracy is defined in the key article, Article 101, as consisting of: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State. (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or intentionally facilitating an act described in sub-paragraphs (a) or (b).“’ Piracy is thus clearly confined to private ends; all political seizures are ruled out unless ‘private’ is to be liberally interpreted in certain circumstances4” It is not clear that piracy in areas beyond national jurisdiction must involve ‘another’ ship or aircraft since this is not specified as it is for piracy on the high seas. Nor is it clear what the use of the word ‘illegal’ signifies.“a Do the acts concerned have to be tested under national or international law? Surely not the latter unless privateering is to be revived, or authorization of state or rebel groups similarly to become possible?51 The remaining articles: 0 0 “‘Principle 3 stated: ‘The crime of piracy (sea and air) under general international law is committed by: (1) any person who unlawfully seizes or takes control of a ship or aircraft or who attempts to do so through violence, threat of violence, surprise, fraud or other means’. No reference was made to ‘orivate ends’. “‘Emphasis added. 4sA~, for example, proposed by G.P. McGinley, ‘The Archille Lauro affair implications for international law’, Tennessee Law Review, Vol 52, 1985, pp 691, at pp 700-729. 500n this point see A. Rubin, ‘Is piracy illegal?‘, AJIL, Vol 70, 1976, pp 92-95. He traced its drafting history and proposed deleting the word ‘illegal’ and also the word ‘another’ in clause (b). 511bid, at p 93.

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0

approve commission of piracy by a warship whose crew has mutinied and converted the ship to that purpose; define pirate ship in terms of the interest of those controlling it; and allow for retention of the ship’s nationality if its flag state so desires and allow every state to seize a pirate ship on the high seas using warships or government vessels.

Th ey

do not deal with frustrated attempts although these were widely accepted in the customary definition. As in the Geneva Convention on the High Seas (Article 15(l) \ \ I (a)) \ II piracy thus remains circumscribed by geographic limitation, made worse by the fact that the 1982 Convention (Article 3) permits (but does not require) a 1Zmile breadth for the territorial sea and the use of a system of straight baselines (Article 7), the increasing use (and sometimes abuse) of which is pushing the outer limit of the territorial sea further from the coasts since bays, offshore islands and coastal indentations can all be included in internal waters. Moreover, each extension of the territorial sea also extends the state’s control of the airspace above (Article 2(2)). The LOSC accepts, although it also limits, the concept of

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52Brown, however, op tit, Ref 1, at pp 102-103, takes the view that there is no incompatibility so far as the piracy provisions (Articles 100-107) are concerned and that the intention that they should apply in the EEZ ‘would seem to follow’.

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archipelagic straight baselines connecting the outermost islands of an archipelago and forming the baseline from which the territorial sea of such states is measured (Part IV, Articles 4&54). Such states can regard the waters enclosed and the airspace above them as subject to their sovereignty. Thus vast areas are now removed from the operation of piracy jure gerztium although some of them, such as the waters off Indonesia and the Philippines, are particularly vulnerable to piracy in its modern forms, as we shall see. The UNCLOS also provides for an extension of the contiguous zone from the 12 miles permitted in the Geneva Convention on the Territorial Sea to 24 miles, but still does not include piracy within the laws in relation to which a state may exercise in this zone the control necessary to prevent violations. This deficiency incidentally limits the exercise of the right of hot pursuit since it cannot then be exercised for piracy occurring in this zone, which remains piracy on the high seas, however. Finally, further problems arise from the provisions permitting establishment of a 2Wmile exclusive economic zone (Part VI, Articles 5.5-57) measured from the territorial sea baselines but applicable only to the area beyond that belt, within which the coastal state has exclusive rights to exploit natural resources and over other economic uses, as well as various additional jurisdictional rights. The situation is complicated because the piracy provisions are in Part VI of the UNCLOS relating to the high seas which states (in Article 86) that it applies ‘to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a state, or in the archipclagic waters of an archipelagic state’. Although Article 5X states that in the EEZ all states continue to enjoy the freedoms of navigation and overflight and ‘other internationally lawful uses of the sea related to them, such as those associated with the operation of ships’ and aircraft, it also makes these rights ‘subject to the relevant provisions of the Convention’ without making it clear which are the ‘relevant provisions’ or which take priority. Article 86 adds that the articlc ‘does not entail any abridgement of the freedoms enjoyed by all States’ in the EEZ under Article 58, which itself also adds that ‘Articles 88 to 115 . apply to the exclusive economic zone so far as they are not incompatible with this Part’, but coastal states may consider that as the zone’s purpose is to secure their exclusive right to its economic uses and as its legal status is arguably left sui generis by the wording of the LOSC since it is not clearly stated to be part of the high seas, it is their responsibility to protect navigation from piratical assaults; the better view, however, would be that as the zone is by its terms not part of the territorial sea the piracy articles apply in it.‘* States taking the other line might also argue, however, that piracy is an unlawful use outwith the residual rights of other states. The fact that attempts by the UNCLOS Drafting Committee to eliminate this confusion in favour of the better view were rebuffed bodes ill for future interpretation. It may be resolved by resort to the dispute settlement procedures provided by the Convention when it comes into force but it is unlikely that all states will be parties to the Convention and in any case Article 59 concerning attribution of rights and jurisdictions in the EEZ between coastal and other states in the even; of conflict is itself ambiguous: it merely provides that such conflicts should be resolved ‘on the basis of equity and in the light of all the

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ante of the interests involved to the parties as well as to the international community as a whole’. What effect is this missed opportunity to revise the definition going to have on modern piracy since so much of the area formerly regarded as high seas is, or might be, withdrawn from this categorization? Only 7%-15% of recent incidents of violence at sea would have been classed as piracy had the UNCLOS been fully operational. Although the treaty is not formally in force, much of its zonal provisions is becoming, or is likely to become, part of customary law through state practice.

Traditional technology

piratical acts against modern vessels using new

Locus and types of acts A recent work based on the proceedings of a workshop on violence at seas3 provides a wealth of information on this subject, as also do the proceedings of a seminar organized by the Nautical Institute in London last years4 and the three reports produced by the International Maritime Bureau (IMB) on ‘The Incidence of Piracy and Armed Robbery from Merchant Ships’.” It appears that most attacks against shipping take place in particular geographical areas, in particular off the West Coast of Africa (especially Nigeria, Ghana and Sierra Leone), off Brazil, in the Caribbean and in South-East Asia, particularly in the Straits of Malacca and Singapore and the Phillip Channel, mostly on the Indonesian side where there are many small islands. Some pirates use radar to locate vessels; gather intelligence from radio and from informers in the receiving warehouses (so that even particular containers can be targeted on particular ships) and carry out their attacks with fast motorized boats often armed with sophisticated guns; they use modern boarding gear and have attacked vessels up to 100 000 d.w.t. Most of these pirates are land based and do not roam the seas as of old. Most of the attacks now occur in ports and harbours or in other parts of internal or coastal waters, not on the high seas, and are thus not piracy jure gentium, although some acts do occur as far as 20 miles offshore. There are probably twice as many incidents as are actually reported since owners are loath to attract publicity which could have an adverse effect on unions, insurance premiums and trading partner countries. The states concerned themselves often want to keep the attacks private for commercial and national security reasons. Most attacks off Africa are of the robbery with violence type, but those off Asia often involve also extreme cruelty. 53A. Parritt, ed, Violence at Sea, Proceedings of Workshop of the International Chamber of Commerce’s (ICC) International Maritime Bureau, San Jose State University, California, March 7986; ICC Publishing SA, 38 Cows Albert ler, 75008 Paris, France. 54Piracy, Proceedings of a Seminar Organized by the Nautical Institute, 37 October 7985, London, obtainable from the Nautical Institute, 202 Lambeth Road, London SE1 7LQ; see also A.D. Wiener, op tit, Ref 14, at pp 470-473. 55First Second and Third Reports into Piracy’and Armed Robbery from Merchant Ships, IMB, Barking, Essex, UK.

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Problems and response The problem this situation presents, as the offences mostly occur within areas of national jurisdiction (disregarding the existence of an EEZ), outside the scope of the universal jurisdiction accorded under piracy jure gentium as presently conceived, is one of ensuring that appropriate national laws exist and that they are enforced. It will be observed that the problem countries are all developing states with large offshore areas. Provision of outside practical or financial aid to improve enforcement would appear to provide the best response in such cases. Although extending the scope of piracy jure gentium to encompass at least the territorial sea would also be advantageous, it seems unlikely that coastal states will accept this since they would regard it as an

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invasion of their sovereignty. States could accept help in enforcement from other states’ coastguard or naval vessels by concluding bilateral agreements, as some Caribbean countries have done with the USA. Other offences fall into the categories of yacht piracy, piracy against boat people, and piracy for political purposes and by belligerents. Yachtpiracy. Accurate statistics on the seizing of yachts also are hard to come by but US authorities believe that in the areas most affected, the Gulf of Mexico and the Caribbean (especially the Bahamas) over 200 people have disappeared.“h Similar incidents occur in South-East Asian waters, the Gulf of Aden and the Red Sea. A main cause of such seizures is drug smuggling; smugglers steal yachts at sea and either kidnap or dispose of those on board. The yacht is generally disposed of after one trip. The large and growing number of private yachts makes checking and enforcement difficult but in this case the state most affected, the USA, is a highly developed one. The offences, however, generally do not occur in its own territorial sea. The answer seems to be for the USA, as it has done, to enter into agreements with the poorer coastal states concerned to aid them in arresting the offenders. Piracy against boatpeople.’ Available statistics are horrifying and again conceal the true picture. In the first two months of 1983, for example, of 42 boatloads of Vietnamese refugees landing in Thailand, 25 had been attacked by pirates, generally two or three times; six people were killed, 32 kidnapped and 18 women raped; 60 people were missing. From 1980-85 the UNHCR received reports that overall 1 376 people had been killed, 2 283 women raped and 592 kidnapped by Thai fishermen, only about 100 of whom have been caught.‘8 Most attacks occur in the South China Sea, Gulf of Siam and Straits of Malacca. Some attacks occur on the high seas but most occur within territorial waters, especially those of Thailand and Malaysia; the problem is a regional one with most offences falling to be dealt with under municipal law. Again the answer for the time being is to try to improve the enforcement capability of the governments concerned by providing international economic assistance. The United Nations High Commissioner for Refugees (UNHCR) has organized appeals for voluntary funds through the International Committee of the Red Cross (ICRC) to purchase more patrol boats, etc for Thailand. The UNHCR is also helping victims of pirate attacks to take legal actions against the pirates. Between 1979-83, 53 fishermen were tried in Thailand for crimes against refugees; 27 of these were convicted and sentenced to up to 25 56J. Fiksdal, ‘Hvor Sjoroverne Herjer’, Na, No 28, 1985, pp 28-30, Oslo, Norway, at p years imprisonment but this is a very small percentage of actual 30. offenders. Problems are often encountered in persuading the victims to 57A. Billard, ‘Pirates in the Gulf of Siam’, give evidence.59 Refugees Magazine, May 1983, published by Public Information Section at the Office Piracy for political purposes and by belligerents.6” These acts have of the UN High Commissioner for Realways occurred but have always been rarer than those for robbery; they fugees, pp 24-26; and ‘Dossier: the fight against p/racy’, ibid, p 27; see also GTR. have now become very rare indeed. Unlike the categories described Villar. ‘Modern day piracy’, in Piracv. _ OP above they are not confined to any particular region or coastal area and cif, Ref 54, at pp 3-4. _ they are more likely to occur on the high seas. The events concerned are 58Billard, op tit, Ref 57, p 24; Villar, op tit, isolated, one-off incidents dccurring on a single vessel and it is Ref 57, p 4. ‘%NHCR Dossier, op tit, Ref 57, p 27. impossible to forecast them. They are thus not so readily dealt with by 6oFor details of such seizures see J. improving national enforcement capability; the need for fuller internaSimon, ‘The implications of the Achille tional action is more apparent and persuasive but the incidence of such Lauro hijackino for the maritime community’, in A. Pa&, ed, op tit, Ref 53, pp attacks has so far been so small that there had, until after the Achifle 17-24. at PP 19-20: T.S. Schiller. ‘MariLauro seizure, been no generalized international law concerning such time t&rori&: the threat’, ibid, ~~‘87-92; piracy or hijacking at sea. As developments are now underway in IMO see also Villar, op tit, Ref 57, at p 6.

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6’B.M. Jenkins, K. Gardela and G. Petty, ‘A chronology of terrorist attacks and other criminal actions against maritime targets’, in Violence at Sea, op tit, Ref 53, pp 63-85, at p 65; a Chronology of Incidents, 1960-l 983 is given at pp 69-85. ‘*For accounts and comments on the legal problems involved in this incident see A. van Zwanenbera. ‘Interference with shies on the high seas’, ICLQ, Vol 10, 1961, pp 785-817, at pp 798-801 (for facts) and pp 801-817; she does not think the case was piracy because it occurred on one ship only without the intention of private gain; T.M. Franck, ‘To define and punish piracies - the lesson of the Santa Maria: a comment’, NYULR, Vol36, 1961, pp 839844, who concludes that the distinction between internal and external seizure is no longer valid, at p 844; G. Fenwick, ‘ “Piracy” in the Caribbean’, AJIL, Vol 55, 1961, pp 426428, who asks how the offence could be called ‘political’ when Galvao had held no public office; F. Vali, ‘The Santa Maria case’, North-western University Law Review, Vol 56, 1961, pp 168-175, who considers that as the exile organization on whose behalf Galvao carried out the seizure had no legitimate status in international law, not being a recognized government, it cannot be classed as piracy although evolving international law may take a more liberal view in attributing legal personality to such bodies; L. Green, ‘The Santa Maria: rebels or pirates’, BY/L, Vol 37, 1961, pp 496-499, who categorizes the actions as political. The incident has been reassessed in the articles relating to the Achille Laura seizure referred to in Ref 73 below, viz Constantinople, Menefee. 63Van Zwanenberg assesses the grounds other than piracy on which the seized vessel might have been stopped and suggests that there would have been no real objection to foreign vessels stopping it to inspect its papers. 64Vali, op tit, Ref 62, at p 171. ?bid, p 175.

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but remain the most contentious issue in further defining and punishing piracy we shall return to them in our conclusions. There are said to have been about 47 terrorist attacks on ships in the last ten years, with eight hijackings and 11 vessels destroyed. Few of these, however, seriously raised the question of whether they could be regarded as piracy.61 The most notorious and interesting that did so were incidents involving the Santa Maria, USS Pueblo, SS Mayaguez and Achille Lauro. The Santa Maria incident.62 Although similar incidents have occurred in the past, the modern history of such claims begins with the seizure on the high seas in 1961 of the Portuguese passenger liner, Santa Maria, by 71 Portuguese insurgents, led by Colonel Galvao, dedicated to overthrowing President Salazar of Portugal; they came aboard as passengers. In seizing the ship they killed one officer, wounded a crewman and undoubtedly frightened the other passengers, some of whom were not Portuguese nationals. It was far from clear what Galvao’s motives were, although it appeared later that Galvao purported to represent the ‘Portuguese National Independence Movement’, or ‘Iberian Liberation Movement’, or a General Delgado’s Liberal Junta. The Portuguese government designated the insurgents as pirates and asked for US, Dutch and UK assistance in apprehending 11 them, but Galvao threatened to scuttle the ship if warships approached. The precise events were not so clear at the time as they later became; the UK and the USA at first resnonded and ordered their warshius1 to I search for the Santa Maria and arrest her if possible.6” The UK later withdrew but at first stated that it was acting ‘in accordance with international law’ in compliance with a request for ‘assistance to protect life and property on a ship on the high seas’. The USA stated that its help was in accordance with the well-defined terms of international law relating to piracy and insurrection on board ship ‘to protect passengers and crew and return the ship to its rightful owners’; it did not assert any right to aid its 42 nationals on board on the basis of self defence. The Santa Maria was spotted by a Danish vessel and the US and Portuguese naval forces moved to intercept the ship and cut off Galvao from escape to Africa. Negotiations took place and Galvao, the passengers and crew finally disembarked in Brazil with so-called exit visas stamped by the ‘Independent National Council for Liberation’ on whose behalf Galvao purported to be acting. Galvao and his followers were granted asylum in Brazil, which returned the vessel to Portugal. Since it was clear that the insurgents were unrecognized and that seizure took place on the vessel and was for political purposes, most commentators agreed that it clearly did not constitute piracy under the applicable customary international law. Although the custom had also purportedly been codified in the Geneva Convention, the convention was not in force at the time of this incident and in any case, as Vali points out, it was generally considered to be a restatement of existing international law.64 Most considered that it could not be piracy because there was no evidence of private ends, such as robbery or vengeance. Galvao’s act might be punished under Portuguese law as mutiny or piracy, but not under international law which looked to the motive. Although international law does not confer any_ legitimate status on exiled revolutionary movements unless they are recognized as governments

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Piracy about political motive in relation to such a nebulous, unrecognized group as Galvao’s. She designated Galvao’s group as ‘potential insurgents’, ‘ a political elite wishing to begin a civil war’ and found even more reason for treating members of such groups as pirates because, there being no factual basis for recognition of any kind of status, international law otherwise had little control over them.hh Thomas Franck also seems to have had some doubts about limiting piracy to external acts, ie to attacks by one ship against another, and excluding internal acts, since this affects the right to arrest the vessel as a pirate.“’ He advances as arguments in favour of retaining piracy for internal seizure, rather than relying on states giving voluntary assistance to flag states in such cases, the delays involved in notifying incidents, obtaining ‘requests’ for help and deploying fleets, compared to the speedy response permitted if the ship can be declared an outlaw. Historically, he contends, the narrower distinction may have been valid because of its effect on salvage and prize claims, but not today; he considers the distinction between external and internal acts is a gap which should be closed. by Fenwick,6y that Green suggested, ” in response to a suggestion since Galvao’s ‘revolution’ began after he seized the Santa Maria, his action could not be regarded as political, that the ‘political’ nature of an action should be determined not by the character of the offence in furtherance of an organized political movement but by the identity of the individual committing it although the burden of proof falls not on that individual but on the states concerned; he maintains that under this test there would be no doubt that Galvao’s actions were political. The USS Pueblo incident.‘” This US warship, engaged in electronic eavesdropping off the coast of North Korea, was arrested by a North Korean warship. The North Koreans claimed the vessel was within the North Korean territorial sea at the time. The USA, which claimed only a three-mile territorial limit, denied both that the vessel was in North Korean waters when captured and the charge that it was engaged in illegal activity. The crew were imprisoned, later signed confessions and were eventually released after negotiations which led to the USA endorsing these confessions and also accepting that the vessel was in North Korea’s territorial waters, although it later repudiated both admissions. Although this incident is sometimes discussed in connection with piracy there seems to be no ground for doing so, private ends being entirely absent even though violence took place from one vessel against another. SS Mayaguez. ” This US merchant ship was seized in 1975 by the Khmer Rouge in the Gulf of Siam on the high seas, and 6.5 miies South of Poulu Wai, a Cambodian island. Cambodia claimed a 12-mile territorial sea; the USA a three-mile one. The USA had not recognized the Khmer Rouge as the government of Cambodia. The USA designated as an act of piracy an illegal seizing of a vessel on the high seas since the Muyaguez had not committed any offence and, failing any response from Cambodia, a US warship entered Cambodian waters and released the vessel by force. Even if the Muyaguez had been in territorial waters recognized by the USA, it would, of course, still have been entitled to a right of innocent passage but had the Mayaguez violated the law concerning such passage it is arguable that a state claiming a 12-mile territorial sea has no right to detain it. The Cambodians claimed to suspect that it was a spy ship and thus a threat to their security, rendering doubt

6”Van Zwanenberg, op tit, Ref 62, pp 817-818. 67Frank, op cit. Ref 62, pp 843, 844. 68Green. OD cif, Ref 62, at D 505. after reviewing iarious municipal cases. “Fenwick, op tit, Fief 62, who considered Galvao’s actions plain murder and criminal violence since the law of armed conflict applied only to groups in rebellion and the government against which they rebelled and could not be relied on to protect those attacking civilian lives and property. 7oFor a detailed critique see A. Akinsaya, The ‘Pueblo affair and international law’, Ind. J.I.L., Vol 15, 1975, p 485; S.B. Finch, ‘Pueblo and Mayaguez: a legal analysis’, Case Western Reserve J.I.L., Vol 9, 1977, p 79. 7’For details and analvsis see R.E.Ward, ‘The Mayaguez: the right of innocent passage and the legality of reprisal’, SDLR, Vol 13, 1976, p 765; MacDowell, ‘S.S. Mayaguez incident’, AJIL, Vol 69, 1975, p 875.

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%. Crockett, ‘Towards a revision of the international law of piracy’, De Paul Law Review. Vol 26, 1978. DD 78-99. at PP 84-87 regards the ‘private ends’ test as a ‘sledgehammer solution’ (p 87) since inter alia the USA had not recognized the Khmer Rouge. 73For a description of and/or a commentary on this incident on which this account is based see S. Menefee, ‘Terrorism at sea: the historical development of an international response’, in Parrit, op n’t, Ref 53, pp 191-205; B. Brittin, ‘The two faces of piracy’, unpublished paper given at 20th Conference of the Law of the Sea Institute, Miami, USA, 1986 (obtainable from Citizens for Ocean Law, 1601 Connecticut Avenue, NW, Suite 202, Washington, DC 20009. USA): G. Constantinople. ‘Towards a definition’of piracy: the Achille Lauro incident’, Va. J.I.L., Vol 26, 1986, pp 725-753. 74For details of the warrant, etc, see ‘Documents concerning the Achille Lauro affair and co-operation in combatting international terrorism’, ILM, Vol XXIV, 1985, pp 1509-l 565. 75According to the Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1978 edition, at pp 1673-1674, ‘private’ means ‘withdrawn from public life, peculiar to oneself; pertaining to a person in a nonofficial capacity; of pertaining or relating to, affecting a person, or a small group of persons apart from the general community’, International law, as evidenced by the 1969 Vienna Convention on the Law of Treaties, 1980 UKTS 58 (Article 31(l)) requires that words be accorded their ordinary meaning (unless all the parties to a treaty agree to attribute a special meaning (Article 31 (4)).

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its passage non-innocent. Again the lack of any private motive would seem to prevent this incident being categorized as piracy.” Achille Lauro.73 On 3 October 1985, an Italian cruise liner, the Achiffe Lauro set sail for Egypt and Israel with 750 passengers of assorted nationalities and a mainly Italian crew of 331; most disembarked in Alexandria for a tour. The rest and the crew, numbering 400 in all, sailed off to Port Said but shortly after leaving Alexandria, outside Egypt’s territorial waters, four Palestinian terrorists from the Palestinian Liberation Front (PLF) seized the ship. It seems their intent was retaliation for the 1 October Israeli raid on the headquarters of the Palestinian Liberation Organization in Tunisia. The hijackers demanded the release of 50 Palestinians held in Israel in return for the release of the passengers. They ordered the ship to sail to Syria, which refused them port entry. The hijackers then on S October killed Leon Klinghoffer, an elderly American passenger, confined to a wheelchair, and threw the body overboard. The ship was refused entry to Cyprus also and then returned to 15 miles off Port Said where Egyptian and PLO officials, on 9 October, negotiated a safe passage from Egypt for the terrorists in return for the release of the hostages and the ship. The Egyptian authorities disclaimed knowledge of any killing on board and refused to detain, try or extradite the Palestinians. US navy fighter planes intercepted the Egyptian aircraft carrying the hijackers and forced it to land at a US-Italian NATO military base in Sicily, thus bringing the hijackers within the jurisdiction of Italy whose ship they had seized. The Italians thereupon arrested and charged them. The USA requested that they be held for extradition to the USA and issued an arrest warrant based on three formal charges - hostage taking, piracy on the high seas and conspiracy under relevant US laws.74 The US Comprehensive Crime Control Act of 1984, s.1203, defines the crime of hostage taking as ‘seizing or detaining or threatening to kill, to injure or to continue to detain’ another in order to compel a ‘third person or government to do (or abstain from) any act as a condition for the release of the detainee’. The piracy charge cited the 1909 Federal Statute, viz 18 USC Sec. 1651, which states, as noted earlier, that ‘whoever on the high seas commits the crime of piracy, as defined by the law of nations, and is afterwards brought into or found in the United States shall be imprisoned for life’. The arrest warrant concerning the piracy charged the hijackers with piracy under the law of nations, alleging that without legitimate authority they seized control of the Achille Lauro by use and threat of violence and had done so for private ends: it also charged them with conspiracy to commit piracy. The warrant and the US statute thus beg the question as to what is piracy under present international law. The account given in this article, it is submitted, shows clearly that this neither covers acts committed on one vessel (despite some criticism of this aspect) nor acts committed for political ends, which despite the US allegation that they were private, clearly were not so.?’ The facts might ground a charge of piracy under some municipal laws in this case but as the US statute incorporates the international law, US courts are now, the USA being a party to the 1958 High Seas Convention, unlikely to accept that US law covers this case. In any event, even if the contrary view is correct and the case fell within US municipal law, the USA could take no international action; it could not have arrested the Achille Lauro on the high seas, only if it was in US jurisdiction or the pirates subsequently came within it.

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The question remains whether the international law needs revision or supplementation to cover such cases. As has been pointed out by Constantinople, 76 the facts of the Santa Maria and Achille Lauro incidents differ. In the Santa Maria’s case the Portuguese ship was seized by Portuguese nationals, ie the ship was under the flag state jurisdiction of the state whose government was opposed by the hijackers; action against the vessel, in the absence of the commission of piracy, was confined to that state. In the case of the Achille Lauro, however, so far as the USA was concerned, the ship belonged to a third state (Italy) and the actions were conducted by third parties (PLF). If the law looked more at the nature of the actions and less at the status of the actors, Constantinople suggests such acts as those carried out on the Achille Law-o could not be regarded as legitimately conducted for public (political) ends. ” Thus acts piratical in all other respects (violent and non-humanitarian) if directed at ships, property or nationals of third states neutral to an internal conflict could fall within a definition of piracy adapted to this, whilst actions of the kind executed against the Santa Maria would remain outside it. In support of this approach, it is argued that it is consistent with changes in the rules of war since the second world war, common Article 3 of the four 1949 Geneva Conventions on War making it illegal for parties to them to treat inhumanely individuals taking no part in the conflict, and which forbids, inter alia, the taking of hostages.7” As pointed out in the introduction to this paper even in its earliest form the basis of the universal jurisdiction over piracy was not only protection of freedom of navigation to facilitate trade but also humanitarian consideration generated by the inhumane violence that frequently accompanied the acts constituting piracy. This new approach would, therefore, be in accord with the original purposes of the concession of universal jurisdiction.

Legal responses to the changing nature of violence at sea A wide variety of suggestions has been made by writers on the subject of piracy concerning ways of improving the definition of the offence to include at least some political seizures or single ship seizures and also of enhancing the enforcement of the present law at the national, regional and international levels. Such proposals include the following.

%onstantinople, op tit, Ref 73, at p 748. 77/hid, p 749, but see Green’s opposite view, although arriving at a similar overall conclusion, op tit, Ref 62. 78Constantinople, op tit, Ref 73, p 750; relevant conventions cited at p 744, note 103. 7QBritten, op tit, Ref 73. Ynternational Convention for the Regulation of Whaling 1946, published by the International Whaling Commission, 1964, Article l(2). “For an account of this aspect see P. Birnie, ‘Appendix to Fifth Report of the Expenditure Committee of the House of Commons on the Fishing Industry: The History of the EEC Common Fisheries Policy’, 1978, H.C. 356.

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Revision of both the Geneva Convention and the UNLOSC These theoretically could be revised to take account both of the fact that most violence at sea now occurs in territorial or internal waters and that the Achille Lauro incident may prompt more internal ship seizures by terrorists; one commentator has recently proposed this.7” But this would require the convening of conferences of the parties and participants in both conventions either to renegotiate the conventions or add a Protocol to them. There are precedents for the application of international conventions within the territorial sea - the International Whaling Conventions” and the Common Fisheries Policy laid down by the European Community pursuant to the Treaty of Rome8’ are cases in point - but it seems inconceivable that states would find it acceptable either to revise the 1958 Convention at this date for this sole purpose or to revise the UNLOSC before its entry into force, especially as, for its

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parties, it will supersede the 1958 Convention.82 If it were to happen, of course, several other aspects of the definition could also be tidied up the word ‘illegal’ deleted from Article 110(a) and ‘another’ inserted in Article llO(a)(ii); the action required of states could be specified as could the penalties they should impose. However, even the moderate and ingenious suggestion of Constantinople for amendment to include single ship seizures involving third states if executed violently and inhumanely would be difficult to execute in the absence of reconvening the UNCLOS. It is unlikely that all present participants in both conventions would attend any conference convened for this purpose nor would they all accept the amendment; the position in that event would become, even further confused. Only a Fourth United Nations Law of the Sea Conference, held in perhaps ten years time, to renegotiate the whole treaty package might achieve the necessary changes. A new convention dealing separately with modern maritime hijacking offences

@UNLOSC, Article 31 l(1). 83Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, 14 September 1963, ILM, Vol 2, 1963, p 1042. 84Hague Convention for the Suppression of Unlawful Seizures of Aircraft, 16 December 1970, ILM, Vol 10, 1971, p 133. 85Montreal Convention for the Suppression of Unlawful Acts against the Sa’r&y of Civil Aviation, 23 Seotember 1971. ILM. Vol 10, 1971, p 1151 .‘Brown, op tit, kef 1; pp 103-105, has outlined the relevant features of these three conventions which extend the rights of states not otherwise entitled to exercise jurisdiction over the offences committed to prosecute or extradite the offender is found are required to extend their laws to cover the treaty offences. But see also A.E. Evans, ‘Aircraft hijacking: its cause and cure’, AJL, Vol63, 1969, pp 695-710; M. Akehurst, ‘Hijacking’, Ind. J.I.L., Vol 14, 1974, pp 81-89, both of whom point out that practical measures of airport security are likely to be more effective. ‘?MO Dot, PCUA l/l, 1 December 1986. 87Memorandum of Understanding on the Hijacking of Aircraft and Vessels, effected of Exchange of Notes between Cuba and the United States 15 February, 1973; see Brown, op cif, Ref 1, p 105. “Convention on Duties and Rights of States in the Event of Civil Strife, 20 February 1928, 2749 T.I.A.S., 814.

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This might be a more successful approach and is in fact the one now being pursued in IMO. A new offence of ‘maritime hijacking’ could be created by separate treaty for single ship hijackings by political groups for political ends on lines similar to the conventions to suppress aircraft hijacking - the Tokyo,s” Hagues4 and Montreal Conventions,xs which do not cover maritime hijackings. This could, however, in view of the fact that not all states and probably not even all Geneva Convention and UNCLOS parties would participate, be open to the same objection as revision of the Geneva Convention and UNLOSC, namely that it might exacerbate the existing confusion. At present the incidence of maritime hijackings is so small that it seems highly unlikely that states would act to conclude a separate convention; nonetheless a draft Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation is now under consideration in IMO (International Maritime Organization) by an Ad Hoc Preparatory Committee. Its first meeting was from 2-6 March 1987, at IMO Headquarters.s6 Further bilateral or regional treaties Brown has suggested the bilateral approach based on extradition and specific measures, which, prima facie, seems more hopeful, particularly as precedents exist, eg US/Cuba Exchange of Notes on Unilateral Hijacking of Aircraft and Vessels.s7 Menefee has suggested a regional approach similar to the Latin American Convention on the Duties and Rights of States in the event of Civil Strife.‘s The IMO draft convention incorporates this approach without need for conclusion of specific bilateral or regional agreements; the new offence would automatically be added to lists of extraditable offences or any extradition treaties concluded by its parties. The scope of piracy also could be extended, of course, to cover political internal seizures on the basis of mutual recognition in municipal laws providing for this. Extension of Extradition Treaties to deny asylum, as proposed by Brown, and earlier by the ILA in its 1970 Report, would obviously be beneficial, but these goals are notoriously difficult to achieve in relation to political offences on any scale that is sufficiently widespread to be effective. If any states do not participate, escape is always possible. This difficulty exists as much in relation to

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conclusion of a new treaty to deny asylum to ship hijackers as proposed by the ILA, as to the establishment of an International Criminal Court as proposed in the 1920s. However, the European Convention on Suppression of Terrorism offers a hopeful model and it is this that the IMO draft convention is following, inter uliu.” Regional treaties could be encouraged in regions where coastal piracy particularly occurs. The problem in these regions is, as we have seen, more one of enforcement capability since the piratical acts occur in near coastal waters not on the high seas. Most states in Africa and South-East Asia. the most affected regions, lack this capability. An increase in outside help is required, perhaps executed through international organizations. Creation

89European Convention on the Suppression of Terrorism, concluded by the Council of Europe, 1978 ETS No 97. This specifies in Article 1 that for purposes of extradition between Contracting States, none of six listed offences (eg within the 1970 Hague and 1971 Montreal Conventions) shall be regarded as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. It does not yet cover maritime hijackings but could no doubt be so extended by Protocol should its parties so agree. Article 2, however, states that ‘For ihe purposes of extradition between Contractina States, a Contractina State may decide not to regard as a political offence or as an offence connected with a political offence or as an offence inspired by political motives a serious offence involving an act of violence, other than one covered by Article 1, against the life; physical integrity or liberty of a person’. Offences against property are also covered. “B.H. Dubner, ‘The law of international sea piracy’, lnfernational Law and Politics, 1979, pp 471-517, at pp 490-491. “Statement made in BBC broadcast on terrorism by Professor Paul Wilkinson, University of Aberdeen, 15 September 1986, heard by the writer. “Menefee, op tit, Ref 73. %-rternational Convention against the Taking of Hostages, 18 December 1979, 81 UKTS (1983) Cmnd. 9100; for further examples see J.J. Paust, ‘To international terrorism: prevention, punishment and cooperative action’, Georgia Journal of International and Comparative Law, Vol 3, 1975, pp 431-462. “‘Memorandum on Port State Jurisdiction, done 26 January 1982, Paris; entered into force 1 July 1982; ILM, Vol 21, 1982, p 1.

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of a new internationul

dispute settlement

mechanism

This has been proposed by Dubner,“” the Harvard Research Draft and in the 1970 International Law Association Report. It is proposed that a court with compulsory jurisdiction to prescribe penalties should be established: again the time certainly does not seem to be ripe for creation of an International Criminal Court, although a spate of hijackings at sea of such violence as to offend basic humanitarian principles might create a more sympathetic climate for this and it has been reported that there was evidence of this at the ILA’s meeting in Seoul. Korea in 1986.“’ Extension

of application

of related conventions

This approach is favoured by Menefee”’ and is one also adopted in the IMO draft convention. The most relevant would be the 1979 Convention Against the Taking of Hostages,“” Article 5 of which applies the offences of hostage taking as defined therein to offences on board u ship registered in a state party as well as those committed in a territory. The USA also cited this Convention in the Achille Laura case indictment. Port state jurisdiction

This new concept, as defined in the UNCLOS, Articles 220 and 218, could be extended by separate global or regional agreement (on the lines of the Paris Memorandum on Port State Control 19S2)y4 to allow states to take proceedings against the seizers of any hijacked ship entering their ports even if the offence occurred on the high seas or in the EEZs or territorial seas of other states, if the latter so request. Liberal

interpretation

of terms in existing

treaties

Terms such as ‘private ends’ as used in the Geneva High Seas Convention 19% and the UNLOSC 1982 could be given a wider interpretation. International law, as evidenced in Article 31 of the Vienna Convention on Treaties, requires that a treaty, if there is doubt as to its meaning, be interpreted in a way that will make it effective, as long as such interpretation does not conflict with its objects and purposes. The parties can further agree to attribute a ‘special meaning’ to a term, as provided in the Vienna Convention on Treaties, Article 31(4), if the ordinary meaning in its context does not bear such an interpretation. Since the relevant objects and purposes of the 1958 Convention and the 1982 LOSC are the suppression of piracy this approach might be possible if it can be argued that there is doubt concerning the meaning of ‘private ends’. It is notable that no works on

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piracy, so far as the writer has found, apply the specific provisions of the Vienna Convention to the problem of interpretation in this particular context. The objection to such an approach, however, would be the same as to many of the others considered so far, namely that unless there was widespread agreement the situation would be further confused with some states adopting one interpretation and others a different one. Reliance on general principles of law concerning self defence and self’ help In the absence of other effective remedies this approach will increasingly be resorted to as the recent US actions following the Achille Lauro seizure evidenced, however attenuated the principle in particular circumstances, in order to respond to terrorist attacks on vessels. A concerted response well founded in international law would surely be more appropriate than unilateral action and would contribute more to the stability of international legal order. If unilateral action is not increasingly to be resorted to, international law must, therefore, make better use of the legitimate means of action available. This would accord with the humanitarian purposes, the economic aims and the objective of ensuring safety of navigation that originally generated the doctrine of international piracy. As the current developments illustrate, through the IMO and other international bodies, the international community is now endeavouring to work out an international response both through new conventions and new guidelines on practical measures.

Current developments Protection of boat people and prevention

of cargo ship and yacht piracy

Various bodies, as already indicated, are taking measures to improve existing national enforcement of municipal laws, eg the UNCHR and ICRC in relation to the ‘boat people’; the ICC’s IMB, which has proposed fresh practical measures both for protection of ‘boat people’ and prevention of piracy against cargo vessels and yachts, is also developing guidelines for improving security against non-political piracy within territorial waters. The guidelines will be useful to owners, operators, masters and crews, port and harbour authorities, coast guards, etc, in taking practical measures to improve security in ways very similar to airport and airline security checks. The public will be subjected to stricter security checks including X-raying of baggage in ports, personal searches, etc. It is suggested that private security firms should be employed for this purpose. Hijacking and terrorism There is now political pressure on states to take some further action to prevent increasing precipitate unilateral responses by states. The developments are taking two forms: practical measures and a draft convention. Practical measures. In December 1985, Egypt and Italy presented a paper to IMO outlining practical measures, similar to the ICC’s IMB’s ideas, that should be undertaken as a matter of urgency. These were adopted by a Resolution of the IMO Council &rd passed to IMO’s Maritime Safety Committee for action in January 1986. A working group has met to develop guidelines on such practical measures as use of identity cards; scanning devices; ring fences and baggage checks. The

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Piracy

95Lloyds List, 11 September 1986. WNGAR 40/61, 9 December 1985. 971M0 Dot., n 86, p II, para 1. 98/hid, PCUA l/3 Annex, p 2.

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guidelines, when issued, will be in the form of IMO recommendations which states can follow or not as appropriate in and to their circumstances. This approach is non-controversial and is supported by both the USA, which is no longer pressing, as it did initially, for immediate political action and is now willing to discuss more appropriate responses, and the USSR. Consultations have taken place with ICAO, which even after 20 years experience of hijacking is still adjusting its guidelines for airports and airlines. States’ present attitude seems to be that they should learn to walk before they run and to wait to see if maritime hijacking actually does increase or whether another 24 years will pass before the next incident, as was the case between the Santa Maria and Achille Lauro. Early discussion in IMO evidenced that most states were reluctant to adopt legally binding measures comparable to the Aerial Hijacking Conventions of the 197Os, with mandatory requirements for extradition and imposition of specific penalties. Recently, draft guidelines have been published on Detailed Practical Measures to Protect Passengers and Crews from Unlawful Acts against Passenger Shipsgs involved in voyages of more than 24 hours; these thus exclude ferries. ‘Passengers’ are not defined in the guidelines although some IMO Conventions, such as that on Safety of Life at Sea, do provide a definition. Jurisdictional questions are avoided by omission. The guidelines are adapted to local conditions and are intended to bring about more effective compliance by all involved with security requirements and increased awareness of the vulnerable aspects of operations; port and ship security plans are required to be formulated, including appointment of port and ship security officers. The IMO draft convention. The text of the draft convention was submitted by the governments of Austria, Egypt and Italy, following the adoption of the UN General Assembly of a resolution”” adopting Austria’s and Italy’s proposal that the IMO should study the question of terrorism against ships and make recommendations on measures to combat it. The draft is based on the model of, inter alia, the 1970 Hague, and 1971 Montreal Conventions on Safety of Civil Aviation, the UN Conventions on Internationally Protected Persons (1973), Taking of Hostages (1979) and on Torture (1985). It aims ‘to provide for a comprehensive suppression of unlawful acts committed against the safety of maritime navigation which endanger innocent human lives, jeopardize the safety of persons and property, seriously affect the operation of maritime services and thus are of grave concern to the international community as a whole’.y7 It thus envisages the absolute and unconditional application of the principle that offenders should be either punished by states entitled to exercise jurisdiction (these are defined as the flag state of the ships against which the offences are territorial sea or archipelagic perpetrated; states in whose territory, waters the offences have been committed; the state of citizenship of an offender, or of habitual residence of a stateless person; the states whose nationals have been seized, threatened, injured or killed during the commission of the offences defined in the draft) or extradited, the offences as defined in the convention being deemed to be included as extraditable offences in any treaty existing between any of the states parties. It is proposed that five forms of offences be included,y8 viz: those committed by anyone who, unlawfully and intentionally:

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(4

(b) (cl (4

(e)

by force or threat thereof or by any other form of intimidation seizes a ship in service or exercises control of it; or performs or threatens to perform an act of violence against a person on board a ship in service if that act or threat is likely to endanger the safety of navigation; or destroys a ship in service or causes damage to such ship or to its cargo which renders it incapable of operation or which is likely to endanger its safe operation; or places or causes to be placed on a ship in service by any means whatsoever, a device or substance which is likely to destroy that ship, to cause damage to the ship or its cargo which renders the ship incapable of operation, or to cause damage on it which is likely to endanger its safe operation; or injures or kills any person during the commission of any of the offences defined in this article (Article 2, Paragraph 1).

It remains to be seen whether, in view of the small number of such offences that occur, the lack of universality achieved by any of the similar conventions relevant to suppression of aircraft hijacking, the previous lack of enthusiasm for conclusion of such a maritime hijacking convention and marked preference for practical measures, any progress will be made by this draft in IMO in the short term or whether, if adopted, it will achieve any ratifications. The longer term remains speculative, related to the occurrence of further incidents. As yet we do not know what form the convention will take; Marine Policy will report on its outcome in due course. Meanwhile many states still consider that the more urgent and practical solution is to find means of preventing hijackers getting on board ships.

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